Palestinian Bid for U.N. Recognition Has Unintended Consequences, Legal Expert Warns

By Patrick Goodenough | August 26, 2011 | 4:29 AM EDT

Palestinian Authority chairman Mahmoud Abbas, seen here at an Aug. 2009 convention of his Fatah faction in Bethlehem, plans to seek U.N. recognition next month. (AP Photo)

(Editor’s note: Adds link to text of Prof. Goodwin-Gill’s legal opinion.)

(CNSNews.com) – As China and India join the growing international support for the Palestinian Authority’s bid for U.N. recognition, Palestinian leaders have been confronted by an eleventh-hour warning that the move could prove severely detrimental to the Palestinians themselves.

The counsel comes not from a source sympathetic to Israel’s views on the matter, but from a top legal scholar who advised the Jordanian government in its 2004 case before the International Court of Justice on the legality of Israel’s security barrier.

The P.A. team preparing for the U.N. recognition bid next month reportedly sought legal advice on the matter from the scholar, Oxford University professor of public international law Guy Goodwin-Gill, an expert on refugee issues.

His advice, obtained by the Palestinian news agency Ma’an, sets off a series of alarm bells about the unintended consequences of the U.N. initiative (see here for text of Goodwin-Gill's advice).

For months legal experts have weighed in on various implications of the Palestinian’s recognition maneuver, but the P.A. has largely dismissed or ignored their arguments as it pushed ahead with the diplomatic offensive, seeking and winning support from Latin American and other countries – including, this week, Asian giants China and India.

Goodwin-Gill’s opinion, as reported by Ma’an, will not be so easily discounted. Among other things, he warned that the bid will rob Palestinians who live outside the borders of the “state” – that is, the millions of refugees living in Jordan, Lebanon, Syria and other Palestinians living abroad – of representation.

That’s because the U.N. has since 1975 recognized the Palestine Liberation Organization (PLO) as the “sole legitimate representative of the Palestinian people.”

The U.N. bid will have the effect of transferring Palestinians’ representation from the PLO to a “state of Palestine.” Goodwin-Gill’s brief, according to Ma’an, says that means there will no longer be an institution representing the rights of “the entire Palestinian people” at the U.N. and other international institutions. This will have implications for the so-called “right of return” of refugees.

Palestinian refugees and those in the diaspora “constitute more than half of the people of Palestine, and if they are ‘disenfranchised’ and lose their representation in the U.N., it will not only prejudice their entitlement to equal representation ... but also their ability to vocalize their views, to participate in matters of national governance, including the formation and political identity of the State, and to exercise the right of return,” Ma’an quotes the legal brief as saying.

Goodwin-Gill also cited problems relating to the ability of the P.A. to assume greater powers. (Established under the Oslo Accords as an interim body to administer the self-rule areas, the P.A. is not empowered to conduct foreign affairs, a role that was left to the PLO.)

The academic said in the brief that the P.A. is a subsidiary entity set up by the PLO with “limited legislative and executive competence, limited territorial jurisdiction, and limited personal jurisdiction over Palestinians not present in the areas for which it has been accorded responsibility.”

Ma’an also quoted another Oxford academic, Karma Nabulsi – a Palestinian and former PLO representative – as saying that the legal briefing underlines that changing the role or structure of the PLO is a decision that neither the P.A. nor the PLO itself is empowered to take, but one that requires “the agreement of the entire Palestinian people.”

“The PLO is the representative of the people, not just a part of the people,” she said. “The PLO is the architect and creator of the Palestinian Authority … any change in who represents the people or a part of the people requires an expression of the popular will and international recognition.”

Writing on the Council on Foreign Relations blog, CFR senior fellow for Middle Eastern studies Elliott Abrams said the reported Goodwin-Gill legal brief “demolishes the arguments for U.N. recognition.”

Future of diplomatic mission pondered

Abrams noted another pertinent issue – not raised by the Oxford professor – relating to the future of Palestinian diplomatic representation in Washington.

The PLO has been permitted to maintain an office in Washington since 1994. Because of the PLO’s long history of involvement in terrorism, presidential waivers have been required by law every six months to allow its continued operation.

“Would that waiver henceforth be permitted, or be exercised?” Abrams wondered. “But if the PLO office is closed, would the United States accredit an embassy for the State of Palestine? Obviously not, as it would be the American position that there is no State of Palestine, not yet anyway.”

The right of leaders like P.A. and PLO president Mahmoud Abbas to take decisions on behalf of “the Palestinian people” has long been called into question by critics – including some Palestinians – not least of all because Abbas’ four-year mandate as P.A. president officially expired in January 2009.

It was “extended” for a year, and shortly before the rescheduled presidential elections were due in January 2010 they were postponed yet again as a result of the ongoing Fatah-Hamas split. The PLO then extended Abbas’s mandate as P.A. president indefinitely.